No. ED 99246 IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT RUTH NISHIDA, ALISON TUCKER, AND NICHOLAS WHITE, Plaintiffs-Appellants, v. PHARMACIA CORPORATION, Defendant-Respondent. ON APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, MISSOURI AT ST. LOUIS, MISSOURI BRIEF OF TORTS SCHOLARS MICHAEL D. GREEN, W. JONATHAN CARDI, THOMAS C. GALLIGAN, SHAWN J. BAYERN, GREGORY C. KEATING, CHRISTOPHER J. ROBINETTE, GEORGE W. CONK, JASON M. SOLOMON, AND RICHARD W. WRIGHT AS AMICI CURIAE IN SUPPORT OF APPELLANTS Mark I. Bronson, MO No. 23183 Brent M. Rosenthal Newman, Bronson & Wallis Texas State Bar No. 17281075 2300 West Port Plaza Drive LAW OFFICE OF BRENT M. ROSENTHAL, PC St. Louis, Missouri 63146 5400 LBJ Freeway, Suite 1260 Phone: (314) 878-8200 Dallas, Texas 75240 Fax: (314) 878-7839 Phone: (214) 871-6602 [email protected]Fax: (214) 871-6640 [email protected]Counsel for Amici Curiae Torts Scholars Dated: February 8, 2013
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Nishida v. Pharmacia/Monsanto Torts Scholars Amicus Brief
In Nishida v. Pharmacia the Missouri trial court dismissed plaintiff's claim for compensation due to PCB-induced non-hodgkins lymphoma. Led by ALT Thirds Restatement Reporter Michael Gree a group of torts professors has argued in a brief drafted by Texas lawyer Brent Sullivan that the court got it wrong. Both California and the Third Restatement in nearly identical formulations support a finding that the plaintiff's expert's proof is adequate.
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No. ED 99246
IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT
RUTH NISHIDA, ALISON TUCKER, AND NICHOLAS WHITE, Plaintiffs-Appellants,
v.
PHARMACIA CORPORATION,
Defendant-Respondent.
ON APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, MISSOURI AT ST. LOUIS, MISSOURI
BRIEF OF TORTS SCHOLARS MICHAEL D. GREEN, W. JONATHAN CARDI, THOMAS C. GALLIGAN, SHAWN J. BAYERN, GREGORY C.
KEATING, CHRISTOPHER J. ROBINETTE, GEORGE W. CONK, JASON M. SOLOMON, AND RICHARD W. WRIGHT AS AMICI CURIAE IN SUPPORT OF APPELLANTS
Mark I. Bronson, MO No. 23183 Brent M. Rosenthal Newman, Bronson & Wallis Texas State Bar No. 17281075 2300 West Port Plaza Drive LAW OFFICE OF BRENT M. ROSENTHAL, PC St. Louis, Missouri 63146 5400 LBJ Freeway, Suite 1260 Phone: (314) 878-8200 Dallas, Texas 75240 Fax: (314) 878-7839 Phone: (214) 871-6602 [email protected] Fax: (214) 871-6640 [email protected] Counsel for Amici Curiae Torts Scholars Dated: February 8, 2013
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TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... ii INTEREST OF AMICI CURIAE ........................................................................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ...................................... 1 POINTS RELIED ON ............................................................................................. 3 ARGUMENT
POINT I: IN PLACING PRIMARY EMPHASIS ON ITS
DETERMINATION THAT THE TYPE OF INJURIES
SUSTAINED BY PLAINTIFFS AND THE MANNER IN
WHICH THEY WERE SUSTAINED WERE NOT
FORESEEABLE TO MONSANTO IN CONCLUDING
THAT MONSANTO OWED NO DUTY OF
ORDINARY CARE TO PLAINTIFFS, THE TRIAL
COURT DEVIATED FROM THE APPROACH TO
DETERMINING DUTY ENDORSED BY THE THIRD
RESTATEMENT AND LARGELY APPLIED BY THE
CALIFORNIA SUPREME COURT. ............................................... 4
CONCLUSION ..................................................................................................... 16 CERTIFICATE OF COMPLIANCE ..................................................................... 17 CERTIFICATE OF SERVICE .............................................................................. 17 APPENDIX—LIST OF AMICUS CURIAE ........................................................ 18
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TABLE OF AUTHORITIES
Cases Page A.W. v. Lancaster County. Sch. Dist. 0001,
In Cabral, a driver for the defendant parked his tractor-trailer on the
shoulder of a freeway designated for emergency parking only, although he was not
experiencing an emergency. A motorist either fell asleep or suffered an unknown
medical condition, drove off the road, and struck the rig, sustaining fatal injuries.
The widow of the motorist sued the driver's employer; the employer argued that it
owed no duty to a motorist who failed to keep his vehicle on the road. Like the
third Restatement, California recognizes a general, default duty to exercise
reasonable care to avoid risking harm to others, then considers whether "carving
out an entire category of cases from that general duty rule is justified by clear
considerations of policy." 248 P.3d at 1175; compare CAL. CIV. CODE § 1714(a)
(stating California's duty rule) with RESTATEMENT (THIRD) OF TORTS: LIAB. FOR
PHYSICAL & EMOTIONAL HARM § 7 (2010). This approach, the California
Supreme Court observed, "preserve[s] the crucial distinction between a
determination that the defendant owed the plaintiff no duty of ordinary care, which
is for the court to make, and a determination that the defendant did not breach the
duty of ordinary care, which in a jury trial is for the jury to make." Id. (emphasis
in original). In this respect, the Court noted, "California law accords with the
Restatement view." Id. at 1176 n. 3 (quoting the Restatement, § 7, cmt. a). In
deciding whether to recognize an exception to the general duty to exercise due
10
care, the court noted, the foreseeability question "is not whether [the rig driver]
could reasonably have foreseen an accident at that exact spot along the
highway"—which would be a jury question of proximate cause—but "whether it is
generally foreseeable that a vehicle stopped alongside a freeway may be hit by one
departing, out of control, from the road"—which is a legal question for the court.
Id. at 1179. Following an approach largely consistent with that of the third
Restatement, the court "decline[d] to create a categorical rule exempting those
parking alongside freeways from the duty of drivers to exercise ordinary care for
others in their use of streets and highways." Id. at 1172.
Although the ALI’s approach differs from the emphasis on foreseeability
that many courts have taken historically, an increasing number of jurisdictions are
adopting it as the better-reasoned view. Even before the ALI formally approved
the third Restatement, the Arizona Supreme Court expressly held that
“foreseeability is not a factor to be considered by courts when making
determinations of duty” and rejected “any contrary suggestion in prior opinions.”
Gipson v. Kasey, 150 P.3d 228, 231 (Ariz. 2007). In Gipson, the court considered
whether a restaurant employee who furnished prescription painkillers to a co-
worker who then provided them to her boyfriend could be liable for the death of
the boyfriend caused by the toxic effect of the drugs and alcohol. The employee
argued that he owed no duty to the boyfriend because, among other reasons, the
outcome was not foreseeable. The Arizona Supreme Court rejected the argument,
11
noting that the foreseeability of a particular type of harm is inherently a case-
specific inquiry.
Whether an injury to a particular plaintiff was foreseeable by a
particular defendant necessarily involves an inquiry into the specific
facts of an individual case. See W. Jonathan Cardi, Purging
Foreseeability: The New Version of Duty and Judicial Power in the
Proposed Restatement (Third) of Torts, 58 VAND. L. REV. 739, 801
(2005). Moreover, foreseeability often determines whether a
defendant acted reasonably under the circumstances or proximately
caused injury to a particular plaintiff. Such factual inquiries are
reserved for the jury. The jury's fact-finding role could be
undermined if courts assess foreseeability in determining the
existence of duty as a threshold legal issue.
150 P.3d at 231. Citing a draft of the third Restatement, the court observed that its
decision to consider foreseeability as relevant to the issue of breach of duty but not
to the existence of duty "desirably recognizes the jury's role as factfinder and
requires courts to articulate clearly the reasons, other than foreseeability, that
might support duty or no-duty determinations." Id. (citing RESTATEMENT (THIRD)
OF TORTS: LIABILITY FOR PHYSICAL HARM § 7 cmt. j (Proposed Final Draft No. 1,
2005)).
In Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009), a partially
disassembled trampoline left unsecured on the defendants’ property was blown
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onto an adjacent road by a passing storm. A motorist driving on the road lost
control of his car when trying to avoid the trampoline and suffered injuries. The
trial court held that the defendant property owners owed no duty to the motorist
because the occurrence that caused the injury was unforeseeable. 774 N.W.2d at
835. The Iowa Supreme Court reversed, expressly adopting the approach to
determining duty embraced by the third Restatement:
The drafters acknowledge that courts have frequently used
foreseeability in no-duty determinations, but have now explicitly
disapproved the practice in the Restatement (Third) and limited no-
duty rulings to “articulated policy or principle in order to facilitate
more transparent explanations of the reasons for a no-duty ruling and
to protect the traditional function of the jury as factfinder.” Id. at 98-
99. We find the drafters' clarification of the duty analysis in the
Restatement (Third) compelling, and we now, therefore, adopt it.
Id. The court added that no “principle or policy consideration exempts property
owners from a duty to exercise reasonable care to avoid the placement of
obstructions on a roadway.” Id. Thus, based on the Restatement’s approach to the
duty issue, the court reversed the no-duty conclusion of the trial court. Id.
Similarly, the Nebraska Supreme Court adopted the third Restatement’s
duty analysis in A.W. v. Lancaster County. Sch. Dist. 0001, 794 N.W.2d 907 (Neb.
2010). In that case, the mother of an elementary school student sued the school
district after an intruder entered her son’s school and sexually assaulted him in the
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restroom. The trial court concluded that the assault was not foreseeable and
granted summary judgment for the school district. But the Nebraska Supreme
Court reversed. Applying “the reasoning of the Restatement (Third) and [its]
fellow courts that have endorsed it,” the court held that “foreseeable risk is an
element in the determination of negligence, not legal duty.” 794 N.W.2d at 917.
Foreseeability, the court continued, “involves factual inquiries that should not be
reframed as matters of law.” Id. (emphasis in original). Courts “should leave such
determinations to the trier of fact unless no reasonable person could differ on the
matter.” Id.
Even those jurisdictions that have not expressly adopted the third
Restatement’s approach to duty have recognized the very limited role that
foreseeability plays in the duty analysis. In B.R. ex rel. Jeffs v. W., 275 P.3d 228
(Utah 2012), healthcare providers prescribed a variety of prescription drugs to a
patient, who then murdered his wife. The children of the patient and his wife sued
the healthcare providers for negligence. The trial court dismissed the action,
holding that the healthcare providers owed no duty to non-patients. The Utah
Supreme Court reversed, finding “no basis for a rule excluding all healthcare
providers from liability for carelessly prescribing medications that affirmatively
cause their patients to harm third parties.” 275 P.3d at 233-34. Quoting from the
third Restatement, the court emphasized that duty
should be articulated in “relatively clear, categorical, bright-line
rules of law applicable to a general class of cases.” The duty factors
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are thus analyzed at a broad, categorical level for a class of
defendants. In this case, for example, the duty question does not turn
on the specific combination of pharmaceuticals that Nurse West
prescribed or the particular injury that it allegedly caused. Rather,
the duty analysis considers healthcare providers as a class, negligent
prescription of medication in general, and the full range of injuries
that could result in this class of cases.
Id. at 235 (quoting RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL &
EMOTIONAL HARM § 7, cmt. a (2010)). Moreover, the court rejected the
defendants’ reliance on the supposed lack of foreseeability of the harm in
contending that they owed no duty to the plaintiffs. The defendants’ arguments,
the court stated, “conflate the kind of foreseeability relevant to the duty analysis
with the foreseeability inquiries significant to matters of breach and proximate
cause.” 275 P.3d at 235. The appropriate foreseeability inquiry for duty analysis,
in the court’s words, is “whether a category of cases includes individual cases in
which the likelihood of some type of harm is sufficiently high that a reasonable
person could anticipate a general risk of injury to others.” Id. at 235-36. The
relevant category of cases “consists of healthcare providers negligently prescribing
medications to patients who then injure third parties.” Id. at 236. The
foreseeability inquiry is “whether there are circumstances within that category in
which a healthcare provider could foresee injury. We think so.” Id. In contrast,
the foreseeability inquiry proposed by the defendants was “[w]hether—in this
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specific case—the drug interactions and psychological considerations at stake
would lead a reasonable physician to take additional precautions because she
could foresee that Mr. Ragsdale might become violent or dangerous.” Id. at 235
These questions “about the specific mechanism of injury fit within proximate
cause, not duty.” Id.
Under both the third Restatement and California law as described in
Cabral, the trial court erred in allowing its determination of the foreseeability of
the particular harm sustained by plaintiffs, and the precise manner in which the
harm was sustained, to dictate disposition of the duty issue. That foreseeability
issue is for the jury to decide in considering whether Monsanto breached its duty
to plaintiffs. At most, the trial court was authorized to consider whether it is
"generally foreseeable" that the widespread distribution of PCBs throughout the
country might cause injury to bystanders exposed to them through their use or
disposal. On remand, the jury is free to determine that Monsanto could not
reasonably foresee that its PCBs would cause plaintiffs' cancers in the manner that
it did. But the legal conclusion that "the category of negligent conduct at issue"—
manufacture and distribution of PCBs--"is sufficiently likely to result in the kind
of harm experienced that liability may appropriately be imposed" (Cabral, 248
P.3d at 1175, emphasis added) is inescapable.
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CONCLUSION The trial court erred in deciding that because the precise circumstances of
plaintiffs' injuries were not foreseeable to Monsanto, Monsanto had no duty to
exercise ordinary care to protect plaintiffs from injury. The Court should reverse
the decision of the trial court and remand the case for trial on the merits.
Respectfully submitted,
/s/ Mark I. Bronson Mark I. Bronson, MO No. 23183 Newman, Bronson & Wallis 2300 West Port Plaza Drive St. Louis, Missouri 63146 Phone: (314) 878-8200 Fax: (314) 878-7839 [email protected]
-and-
Brent M. Rosenthal
Texas State Bar No. 17281075 LAW OFFICE OF BRENT M. ROSENTHAL, PC
Pursuant to Missouri Supreme Court Rule 84.06, I certify that this brief includes the information required by Mo. R. Civ. P. 55.03 and that it contains 4,156 words according to the word count function of Microsoft Word for Mac 2011 by which it was prepared.
/s/ Mark I. Bronson Mark I. Bronson
CERTIFICATE OF SERVICE I certify that on February 8, 2013, the foregoing brief was filed electronically with the Clerk of the Court to be served by operation of the Court’s electronic filing system upon the following counsel of record:
Counsel for Appellants Ruth Nishida, Alison Tucker, and Nicholas White:
Steve Baughman Jensen [email protected] ALLEN STEWART, P.C. 325 N. St. Paul Street, Suite 2750 Dallas, Texas 75201
Counsel for Respondent Pharmacia Corp.:
Thomas M. Carney tom.carney@ huschblackwell.com Charles E. Merrell charles.merrell@ huschblackwell.com Mark G. Arnold [email protected] HUSCH BLACKWELL LLP 190 Carondelet Plaza, Suite 600 St. Louis, Missouri 63105 /s/ Mark I. Bronson Mark I. Bronson
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APPENDIX—LIST OF AMICI CURIAE Michael D. Green
Wake Forest University School of Law
Winston-Salem, North Carolina
Professor Green served as co-reporter for the Restatement (Third) of the
Law of Torts: Liability for Physical and Emotional Harm (2010). He previously
served as co-reporter for another portion of the Restatement (Third) of the Law of
Torts concerning apportionment of liability. In 2012, Professor Green and his co-
reporter, William D. Powers, President of the University of Texas, jointly received
the John G. Fleming Prize for Torts Scholarship and delivered the Fleming
Lecture at the University of California, Berkeley, School of Law.
W. Jonathan Cardi
Wake Forest University School of Law
Winston-Salem, North Carolina
Professor Cardi teaches classes in torts, remedies, and race theory at Wake
Forest, and has published articles on various issues in tort law including the proper
role of foreseeability in determining the existence of duty and the scope of
liability. He is co-editor of a casebook entitled “The Law of Torts” published by
Thompson-West in 2011.
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Thomas C. Galligan, Jr.
Former Dean and Professor, University of Tenneseee College of Law
President of Colby-Sawyer College
New London, New Hampshire
Thomas C. Galligan, Jr. joined Colby-Sawyer College in New London,
New Hampshire as its eighth president in August 2006. He previously served as
dean and professor of law at the University of Tennessee College of Law in
Knoxville, Tenn., where he also taught torts and admiralty. From 1986 until May
1998, President Galligan taught at the Paul M. Hebert Law Center at Louisiana
State University (LSU). At LSU, Galligan was named the Dr. Dale E. Bennett
Professor of Law and was honored by the students as the Outstanding LSU
Professor six times. President Galligan has published numerous books and articles
on torts and admiralty. His scholarship has been cited in the proposed Restatement
(Third) of Torts and by numerous legal scholars and courts. He has also testified
on admiralty and maritime tort issues before committees of the U.S. House and
Senate.
Shawn J. Bayern
Florida State University College of Law
Tallahassee, Florida
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Professor Bayern teaches classes in Torts, Contracts, and Corporations at
Florida State University College of Law, and has written extensively about the
economics of tort law.
Gregory C. Keating
University of Southern California Gould School of Law
Los Angeles, California
Professor Keating teaches torts, legal ethics, and seminars in legal and
political philosophy at USC Law, and holds a joint appointment with the USC
Department of Philosophy. He is an editor of a torts casebook and writes on torts,
professional responsibility and legal theory.
Christopher J. Robinette
Widener University School of Law
Harrisburg, Pennsylvania
Professor Robinette teaches classes in Torts, Evidence, Professional
Responsibility, and Insurance at Widener University School of Law. He has
written extensively in the areas of tort law and theory and serves as an editor of
TortsProfsBlog.
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George W. Conk
Fordham University Law School
New York, New York
Professor Conk is Adjunct Professor of Law and Senior Fellow at the Stein
Center for Law and Ethics of Fordham University School of Law. He teaches
classes in Torts, Product Liability, and Professional Responsibility among other
subjects, and has written extensively in the areas of tort law and product liability.
Jason M. Solomon
William & Mary Law School
Williamsburg, Virginia
Professor Solomon teaches classes in Torts and Health Law and Policy at
William & Mary Law School. His scholarship focuses on the theory and practice
of civil justice.
Richard W. Wright
Illinois Institute of Technology Chicago-Kent College of Law
Chicago, Illinois
Professor Wright’s teaching and research focus on domestic and
comparative tort law, jurisprudence, law and economics, and law and artificial
intelligence. His published work appears in several international collections of
leading scholarship on tort law and legal philosophy.